In 2011, Joseph Weiler stood before the Grand Chamber of the European Court of Human Rights arguing that Italians had the right to display crucifixes in classrooms of state schools. It was an odd sight: Weiler, an observant Jew wearing a kippah, defending a symbol that many associate with anti-Semitism. Weiler won his case, vindicating freedom of religion and demonstrating the possibility and importance of standing for the rights of those with whom one disagrees.
Andrew McCarthy, David Yerushalmi, and Andrew Bostom seem to think that this is an argument about sharia, and that I am its defender. Not at all. It is an argument about our laws and liberties, on which McCarthy, Yerushalmi, and Bostom are wrong. They clutch their pearls at the mere suggestion that anyone might be bigoted (don’t we all have our prejudices?), claiming that I’m trying to shut down conversation even as they chide NR for running a piece with which they happen to disagree.
Yerushalmi & Co. claim that we face a massive, insidious, yet hidden (“creeping” is the term) threat to our constitutional liberties from sharia. Their main piece of evidence is a report from the Center for Security Policy that Matt Franck has dismantled over at Bench Memos:
Helpfully — for their critics, not for themselves — the authors give a precis at the front of the report of their “Top 20 Cases” that should alarm us. The decisions in question range from the late 1970s to the 2000s. And it turns out that, on their own analysis, we can conclude that just seven — yes, seven — of their “Top 20 Cases” were decisions in which Sharia (or other foreign) principles were enforced in any way whatsoever. . . .
Thirty-five years’ worth of American law, and we have a whopping seven cases in which some “foreign law” was honored (not even Sharia in every case), and not enough information even to tell if something truly unjust happened in any of the seven.
In addition to this flimsy report, Yerushalmi makes a flip suggestion that a neutrally phrased law, or one that simply claims that it respects religious freedom never could be a threat to our first liberty. These are the same sorts of things the Obama administration has been saying in regard to the contraceptive and abortifacient mandate, and they’re no more plausible coming from McCarthy and Yerushalmi.
Kansas’s law has been opposed by many of the leading lights of religious-freedom law, including Robert P. George, Robert Vischer, and Douglas Laycock, the University of Virginia law professor who turned back a major assault on religious liberty by the Obama administration in the landmark Hosanna-Tabor case.
#more#There is a reason these men oppose the Kansas law, and it is not any sympathy for sharia but rather love for our constitutional principles. As Robert P. George warned in First Things, “A precedent established by people in, say, Murfreesboro, Tennessee who despise Islam and see it as a pernicious force, may prove very handy to people in, say, San Francisco who have a similar attitude towards Catholicism.”
The one welcome thing in Yerushalmi’s post is that he actually attempts to address the Kansas law itself. Yet in doing so he ignores one possible reading of this ambiguous law in order to defend a second, still problematic, one. In my article on Kansas’s anti-sharia bill, I discussed the two readings:
Under one reading of the Kansas law, a contract that makes reference to canon law or sharia — but is otherwise perfectly legal — would be thrown out, while an identical one that makes no such reference would be upheld. The other possible reading of the law is that it only bars rulings based on foreign legal systems when the rulings themselves would violate constitutional rights.
While judges are unlikely to accept the first reading because of its ridiculous implications, the very fact that the bill leaves this open as a possible interpretation shows how the anti-sharia folks are only muddying the waters they seek to clear. They hope to tie the hands of fidgety jurists; if anything, they give them new weapons to hand.
The more likely interpretation of the bill, the one accepted and defended by Yerushalmi, is that the Kansas law declares illegal only that which is illegal and unconstitutional. Yerushalmi writes:
A state court might very well apply sharia or the law of England, as courts do all of the time in the appropriate circumstance (i.e., the parties agree to such laws in a contract), as long as the particular aspect of sharia or the law of England does not undermine our own state and federal constitutions in the matter being adjudicated.
To which Robert Vischer was kind enough to send me this admirably concise retort, “If a court is faced with a litigant’s attempt to enforce a contract that entails the waiver of a constitutional right, the court need not consider the source of the motivation for that waiver in deciding whether to permit it.”
Yerushalmi believes that the few judges currently unable to vindicate constitutional liberties will sing a new tune if only we have anti-sharia legislation. How might that work? The new bills say, quite straightforwardly, that unconstitutional things are unconstitutional, illegal things illegal. In what way does the tautology enlighten a judge dense enough to disregard constitutional liberties in the first place? What errant jurist will suffer a sudden conversion from this mere act of legislative emphasis?
The central problem with anti-sharia advocates is that they believe in magic. We face a grave threat, they say, one that will swamp every article of our Constitution and sweep away all our laws. Unless, of course, we adopt their anti-sharia laws. But — and here’s the magic part — these laws, they claim, actually do nothing at all, other than instruct judges to do what they already were supposed to do.
This is the great humdinger of the anti-sharia advocates: They offer us a dire (and, as Matt Franck pointed out, risibly false) diagnosis and then tell us the patient can be healed of every ailment not only at no cost, but without doing anything at all. It’s magic.
The one and only.